The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction. In case number 08F06853, petitioner pled no contest to one count of second degree robbery, and admitted that he used a firearm during the commission of that offense. (Respondent's Lodged Document ("LD") 1 at 9-10.) Petitioner admitted that his conduct in case number 08F06853 violated petitioner's probation in case number 07F07932. (LD 1 at 10-11.) Petitioner was sentenced to twelve years in state prison: two years for the robbery, and ten consecutive years for the firearm enhancement. (LD 2.)
In the instant petition, petitioner claims his no contest plea was involuntary and unintelligent due to ineffective assistance of counsel. After careful review of the record, this court concludes that the petition should be denied.
Petitioner entered a plea of no contest on July 17, 2009. (LD 1.) Petitioner was sentenced to twelve years in state prison on August 13, 2009. (LD 2.) Petitioner did not file an appeal.
On July 28, 2010, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (LD 3.) The Sacramento County Superior Court denied the petition on September 21, 2010. (LD 4.)
Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, on October 18, 2010. (LD 5.) The petition was denied without comment on October 21, 2010. (LD 6.)
On November 22, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 7.) The California Supreme court denied the petition without comment on June 15, 2011. (LD 8.)
The instant petition was filed on May 5, 2011. (Dkt. No. 1.)
At the preliminary hearing, Deputy Gurnaby provided facts from his report concerning the incident herein. (LD 9.) Around 1:00 p.m. on August 20, 2008, a Rite-Aid store in Carmichael, California, was robbed. (LD 9 at 5.) An adult black male entered the store, approached employee David Vardanian, and directed the employee to walk to the pharmacy while pushing a handgun into the employee's side. (LD 9 at 7-8.) At the pharmacy, the suspect told everyone not to move or say anything. (LD 9 at 11.) Another employee, Dawn Wisecarver, who was working in the pharmacy (id. at 36), stated that the suspect stated he "wanted their OxyContin." (LD 9 at 15.) Wisecarver saw the pharmacist put drugs in a bag, one of which was methadone. (LD at 16.) During these exchanges, Wisecarver stated that the suspect had his gun pointed at them. (LD at 17, 38.) After the robbery, the suspect walked out of the store, and Vardanian ran to the front of the store and noted the suspect left the scene in a white-colored car that looked like a Hyundai, with front license plate number 5WOH351. (LD 9 at 11-12.) Vardanian stated someone other than the suspect was driving the vehicle. (LD 9 at 43.)
Deputy Gurnaby related that Vardanian described the suspect as 6 foot 2 inches tall, weighing 200 pounds, wearing a gray hoodie, baggy jeans and dark-colored shoes. (LD 9 at 12.) Wisecarver described the suspect as 5 foot 11 inches tall, weighing about 200 pounds, in his early twenties, wearing a gray-colored hooded shirt and jogging pants. (LD 9 at 14.) Wisecarver saw the suspect carrying a dark-colored handgun. (Id.) The pharmacist described the suspect as 5 foot 10 inches tall, about 180 pounds, wearing a dark gray hooded sweatshirt, blue plaid boxers, and dark gray like sweat type athletic pants. (LD 9 at 57.) The pharmacist claimed the suspect had no facial hair. (LD 9 at 62.)
The Sheriff's Department ran the license plate, and Deputy Baugh detained a suspect at 5804 Sutter Avenue, which was approximately a mile to a mile and a half from the Rite-Aid store. (LD 9 at 18-19.) Deputy Gurnaby and Deputy Warren brought Vardanian and Wisecarver to 5804 Sutter Avenue for a field show-up. (LD 9 at 19.) Vardanian stated "it looked like [the suspect], but the clothes were different." (LD 9 at 20.) Vardanian also noted that the detained person was clean-shaven, but the suspect was slightly unshaven. (LD 9 at 24.) Vardanian also confirmed that the boxer shorts worn by the detained person looked like the boxer shorts worn by the suspect. (Id.) "It was just the type and color of the boxers worn by the [suspect]." (LD 9 at 41.) Wisecarver said she "believed it to be [the suspect]." (LD 9 at 20.) On redirect examination, Wisecarver clarified that she positively identified the suspect before she saw the boxer shorts, and again after she saw the boxer shorts. (LD 9 at 44.) Wisecarver noted that the suspect had changed clothes and shoes. (Id.) Law enforcement later found clothing in a dumpster near the 5804 address, and Vardanian identified the clothing as the ones worn by the suspect in the robbery. (LD 9 at 23, 35.)
Deputy Warren testified that the pharmacist reported that the suspect had Vardanian at gunpoint, and that the suspect demanded methadone and OxyContin. (LD 9 at 53-54.) The pharmacist also reported seeing the suspect jump into a white vehicle that looked like a Hyundai, with a front license plate number 5WOH351. (LD 9 at 56.) The suspect entered the passenger side of the vehicle, and another person drove the vehicle. (LD 9 at 57.) Detective Warren testified that Deputy Baugh "indicated that the suspect actually did have a couple days' worth of facial hair growth." (LD 9 at 58.)
Deputy Short went to 5804 Sutter Avenue and started checking the area for the suspect white vehicle. (LD 9 at 68.) Deputy Short located a white Hyundai Elantra parked at the southeast corner of the address where the vehicle used to be registered to, without a back license plate. (LD 9 at 69, 72.) The deputy wrote down the vehicle identification number ("VIN") from the in-car computer and went to compare it to the vehicle. (LD 9 at 69.) Although the VIN was partially covered by paper, Deputy Short could make out the last two digits which matched the last two digits of the VIN for the suspect vehicle. (Id.) Deputy Short then looked through the driver's side rear window and saw a license plate face up on the rear seat, driver's side, that matched the license plate from the robbery report. (LD 9 at 70.) There was a screwdriver on the floorboard near the license plate. (Id.) Deputy Short later confirmed that the license plate inside the vehicle matched the license plate on the front of the vehicle. (LD 9 at 70-71.) While maintaining watch over the suspect vehicle, Deputy Short saw a black female and black male walk along Sutter Avenue. (LD 9 at 74.) Deputy Short was aware the suspect was described as about 6 feet tall, 200 pounds, and believed the black ...